solved Basically, read the Case and answer the questions. I doesn’t

Basically, read the Case and answer the questions. I doesn’t need to be super long. You just need to respond to the questions well. But at least 2/3 SentencesCase Study 9.3LYONS PARTNERSHIP V. GIANNOULAS179 F.3d 384 (5th Cir. 1999)Lyons Partnership LP (Lyons), the owners of the rights to the children’s caricature Barney, sued Ted Giannoulas, the creator of a sports mascot—The Famous Chicken (the Chicken)—because the Chicken had incorporated a Barney look-alike in its act. The district court granted summary judgment to Giannoulas and awarded attorneys’ fees.On appeal, Lyons raises six issues, the most important of which is whether the district court erred when it determined that there was insufficient evidence that Giannoulas’s use of the Barney trademark caused consumer confusion under the Lanham Act.This case involves a dispute over the use of the likeness of “Barney,” a children’s character who appears in a number of products marketed to children. Barney, a 6-foot tall purple “tyrannosaurus rex,” entertains and educates young children. His awkward and lovable behavior, good-natured disposition, and renditions of songs like “I love you, you love me,” have warmed the hearts and captured the imaginations of children across the United States. According to Lyons, the owner of the intellectual property rights for Barney and the plaintiff in the suit below, the defendants—Giannoulas d/b/a The Famous Chicken and TFC, Inc. (TFC), the owner of the intellectual property rights to the Chicken—sought to manipulate Barney’s wholesome image to accomplish their own nefarious ends.The Chicken, a sports mascot conceived of and played by Giannoulas, targets a more grown-up audience. While the Chicken does sell marketing merchandise, it is always sold either by direct order or in conjunction with one of the Chicken’s appearances. Thus, the Chicken’s principal means of income could, perhaps loosely, be referred to as “performance art.” Catering to the tastes of adults attending sporting events, most notably baseball games, the Chicken is renowned for his hard hitting satire. Fictional characters, celebrities, ball players, and, yes, even umpires, are all targets for the Chicken’s levity.And so, perhaps inevitably, the Chicken’s beady glare came to rest on that lovable and carefree icon of childhood, Barney. Lyons argues that the Chicken’s motivation was purely mercenary. Seeing the opportunity to hitch his wagon to a star, the Chicken incorporated a Barney look-alike into his acts. The character, a person dressed in a costume (sold with the title “Duffy the Dragon”) that had a remarkable likeness to Barney’s appearance, would appear next to the Chicken in an extended performance during which the Chicken would flip, slap, tackle, trample, and generally assault the Barney look-alike.The sketch would begin with the Chicken disco dancing. The Barney character would join the Chicken on the field and dance too, but in an ungainly manner that mimicked the real Barney’s dance. The Chicken would then indicate that Barney should try to follow the Chicken’s dance steps (albeit, by slapping the bewildered dinosaur across the face). At this point, Barney would break character and out-dance the Chicken, to the crowd’s surprise. The Chicken would then resort to violence, tackling Barney and generally assaulting Barney. Barney would ultimately submit to the Chicken and they would walk off the field apparently friends, only for the Chicken to play one last gag on the back-in-character naive and trusting Barney. The Chicken would flip Barney over a nearby obstacle, such as a railing.Lyons ultimately filed a suit against Giannoulas and TFC, alleging trademark infringement, false association, unfair competition, and trademark dilution under the Lanham Act, copyright infringement, and other claims. The district court granted the defendants’ motion for summary judgment. In addition, the district court awarded attorneys’ fees to the defendants based on provisions in the Copyright Act. Lyons has filed a timely appeal with respect to the Lanham Act claims, the Copyright Act claims, and the award of attorneys’ fees.A trademark is a word, name, symbol, or device adopted and used by a manufacturer to identify the source of goods. To establish a trademark violation, Lyons must establish that Giannoulas has used in commerce a mark confusingly similar to Lyons’s. The district court held that there was no likelihood of consumer confusion. In reaching this decision, the district court relied on its finding that the Chicken’s performance was clearly meant to be a parody.Lyons makes two arguments with respect to its trademark confusion claim. First, Lyons argues that Giannoulas’s use of Barney was not intended as a parody. Because Lyons continues to contest this issue on appeal, we first address whether there are any genuine issues of material fact regarding whether Giannoulas was engaged in parodying Barney. Lyons’s second argument is that the district court accorded too much weight to its finding that Giannoulas’s use was a parody.In general, a parody is defined “as an artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.” In general, a reference to a copyrighted work or trademark may be permissible if the use is purely for parodic purposes. To the extent the original work must be referenced in order to accomplish the parody, that reference is acceptable. Giannoulas claims that his use of a Barney look-alike clearly qualifies as a parody. He used the minimum necessary to evoke Barney—while he used a character dressed like Barney that danced like Barney, he did not make any other references to the mythical world in which Barney resides. He did not, for instance, incorporate any of Barney’s other “friends” into his act, have the character imitate Barney’s voice, or perform any of Barney’s songs. According to Giannoulas, Barney was clearly the butt of a joke and he referenced the Barney character only to the extent necessary to conjure up the character’s image in his audience’s mind.Lyons argues that the conduct was not a parody but simply the use of Barney. To support this claim, Lyons points to two kinds of proffered evidence. First, Lyons notes that Giannoulas himself admits that he did not have a definite plan when he incorporated Barney into the act. Lyons argues that this creates an issue of fact regarding whether Giannoulas really intended to parody Barney or simply intended to profit from incorporating the Barney character into his act.This argument is meritless. Clearly, in the context in which Giannoulas intended to insert a reference to the Barney character, the humor came from the incongruous nature of such an appearance, not from an attempt to benefit from Barney’s goodwill. This point is clearly established by the fact that the Chicken’s actions toward Barney seem to have always been antagonistic. Although the performance may have evolved into a far more sophisticated form of commentary, even at its inception, it was clearly meant as a parody.The second argument made by Lyons is that the audience could not have understood the performance to be a parody. Lyons assumes that the target audience here is children and that children would clearly believe that the caricature actually was Barney. Although Lyons is correct that the intended audience is an important factor in determining whether a performance qualifies as a parody, Lyons presented no credible evidence that a significant portion of the audience at evening sporting events are children. Even if young children—like the two-year-old who had such a traumatic reaction to the down-trodden Barney—are in attendance, we would expect them to be supervised by parents who could explain the nature of the parody. We therefore agree with the district court that Giannoulas’s use of the caricature clearly qualifies as a parody. We note that Lyons’s insistence that the Chicken’s act is not a parody is, in our view, a completely meritless argument.In order to understand Giannoulas’s second argument, we must first review our own precedent with respect to consumer confusion under the Lanham Act. Our case law has set out a long list of nonexclusive, nondispositive factors to consider when determining whether a use can result in confusion. These factors are referred to as the digits of confusion. In determining whether a likelihood of confusion exists, this court considers the following non-exhaustive list of factors: (1) the type of trademark allegedly infringed, (2) the similarity between the two marks, (3) the similarity of the products or services, (4) the identity of the retail outlets and purchasers, (5) the identity of the advertising media used, (6) the defendant’s intent, and (7) any evidence of actual confusion. The Fifth Circuit has held that confusion resulting from a parody is not an affirmative defense to a trademark infringement claim but is instead an additional factor that should be considered. The district court relied on its finding that the conduct was a parody when considering each of the remaining factors or digits described in a prior case. Giannoulas’s argument is that the relevance of the conduct being a parody is only one digit to be considered among the digits of confusion. Lyons argues the district court erred by relying on the conduct being a parody to conclude that the other factors did not indicate a risk of confusion. The crux of Lyons’s argument is that, when considering whether conduct is likely to cause consumer confusion, even if there is overwhelming evidence that the conduct is a parody, the other digits of confusion must still be considered separately, without reference to whether the conduct is a parody. If, after conducting this analysis, there are factors that support the plaintiff’s claim, he argues that the plaintiff should be permitted to proceed to trial. We find this analysis absolutely absurd. Such an approach would all but require a trial for any trademark suit where the conduct was a parody. A brief consideration of only one of the digits of confusion makes this point clear. The first digit, that is, the type of trademark allegedly infringed, questions whether the trademark is so distinctive that a consumer encountering the defendant’s mark would be likely to assume that the source of a product or service is the owner of the trademark. Thus, under the traditional analysis, the stronger the trademark, the more likely that this factor would weigh in favor of the plaintiff. However, as the district court correctly noted in this case, when a consumer encounters the use of a trademark in a setting that is clearly a parody, the strength of the mark may actually make it easier for the consumer to realize that the use is a parody. Therefore, a strong mark is not as relevant a factor when the use is that of parody. It seems reasonable to us to expect that most comedians will seek to satirize images or figures who will be widely recognized by their audiences. It therefore seems unlikely that comedians will target trademarks that do not have significant strength. If the district court were not able to consider the relevance that parody plays in this analysis, the district court would almost always have to conclude that this digit of confusion weighed in favor of the plaintiff. Such a result would effectively tie the district court’s hands unnecessarily and prevent the district court from applying common sense to determine whether a particular factor is actually likely to lead to confusion. Simply put, although the fact that conduct is a parody is not an affirmative defense to trademark infringement, a parody should be treated differently from other uses that infringe on a trademark. While it is only one factor to consider, it is a factor that must be considered in conjunction with all of the other digits of confusion. When, as here, a parody makes a specific, ubiquitous trademark the brunt of its joke, the use of the trademark for satirical purposes affects our analysis of the factors to consider when determining whether the use is likely to result in consumer confusion. We therefore conclude that the district court did not err in considering the other digits of confusion in the light of its finding that the Chicken’s performance is a parody. In doing so, we hold that, when we stated in Elvis that use as parody was a relevant factor, we did not intend for the nature of the use to be considered separately from the other digits of confusion. The district court ably considered the other digits of confusion in this respect, and we find no error in its conclusion that there is insufficient evidence to support a violation under the Lanham Act.n this case, Lyons argued that Giannoulas’s use of a Barney caricature violated the Copyright Act and the Lanham Act. The district court disagreed and a review of the record indicates that the district court did not err in doing so. On appeal, we address only the argument related to the relevance that parodic conduct has on determining the likelihood of confusion in a trademark infringement case. We note that in this case the conduct was, without doubt, a parody. Having made that finding, the district court did not err in concluding that the nature of Giannoulas’s use is relevant when analyzing the other digits of confusion to determine likelihood of confusion. For the foregoing reasons, the ruling of the district court is AFFIRMED.Case Study 9.3 Review QuestionsLyons Partnership v. Giannoulas1. State the names of the plaintiff and defendant, the volume number, page number and name of the reporter, and the court that decided the case2.Describe the facts of the case.3.What was the cause of action?4.What was the court’s disposition of the case?5.What was the defendant’s purpose in using the Barney-like character in his act?6.What was the nature of trademark confusion regarding the defendant’s act?7.What is a parody? Why is a parody viewed differently in trademark cases?8.What was the appellate court’s rationale in determining that the defendant’s actions were a parody?9.What are the “digits of confusion”? How are these digits used in a trademark case? How does a parody relate to the digits of confusion?10.Why is a strong mark not as relevant a factor when the use is a parody?11.What important insight can be learned from this case to reduce its likelihood of reoccurrence?